Abbot Point Bulkcoal Pty Ltd t/a Abbot Point Operations

[2024] FWCA 3842

[2024] FWCA 3842

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Abbot Point Bulkcoal Pty Ltd t/a Abbot Point Operations

(AG2024/3841)

ABBOT POINT BULKCOAL ENTERPRISE AGREEMENT 2024

Coal export terminals
COMMISSIONER SLOAN	SYDNEY, 1 NOVEMBER 2024

Application for approval of the Abbot Point Bulkcoal Enterprise Agreement 2024

1. Abbot Point Bulkcoal Pty Limited (“the Employer”) has made an application for approval of an enterprise agreement known as the Abbot Point Bulkcoal Enterprise Agreement 2024 (“Agreement”), pursuant to s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.

2. Clause 2.1(7) of the Agreement purports to permit the Employer “to dismiss an Employee without notice for misconduct, dishonesty, disobedience or neglect of duty” (my emphasis). This is inconsistent with s 123(1)(b) of the Act, having regard to the definition of “serious misconduct” in reg 1.07 of the Fair Work Regulations 2009.

3. However, cl 1.3(1) of the Agreement provides that where there is an inconsistency between the Agreement and the National Employment Standards (“NES”), the NES will prevail to the extent of the inconsistency. If applied correctly, cl 1.3(1) should prevent cl 2.1(7) being relied on in a manner contrary to the NES. In raising the issue, it is my intention to ensure that this is the case.

4. The following organisations were bargaining representatives for the Agreement:

   a.   the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”, known as the Australian Manufacturing Workers’ Union (“AMWU”);

   b.   the Australian Workers’ Union (“AWU”);

c.   the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“ETU”); and

d.   the Mining and Energy Union Queensland District (“MEU”).

1. The AMWU, the AWU, the ETU and the MEU support approval of the Agreement.

2. On the basis of the material in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act as are relevant to the application for approval have been met.

3. The AMWU, the AWU, the ETU and the MEU have each given notice under s 183 of the Act that they want the Agreement to cover them. As required by s 201(2) of the Act, I note that the Agreement covers the AMWU, the AWU, the ETU and the MEU.

4. The Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 8 November 2024. The nominal expiry date of the Agreement is 1 November 2028.

COMMISSIONER

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